On the evening of Tuesday, November 15, I joined seven other people testifying before the Montgomery County Public Safety Committee about the proposed loitering/”prowling” bill 35-11, introduced by Councilman Phil Andrews.

That testimony is below; I’ve added a few links where appropriate. I’ll describe the hearing and the testimony of others in a separate post.

I’d like to thank Professor Andrew Taslitz of Howard University for connecting me with Howard Law students Maryam Mujahid (editor of the Howard Law Journal), Marc Watkins, and Michelle Mills. I’m very grateful to each of them for their generous help on very short notice. Their research and review work was invaluable; any errors are mine alone. It was also great to meet Marc, Michelle, and fellow law student Darien Jones at the hearing.

The October 25 memo about this bill cites cases seeming to show laws based on the same Model Penal Code ordinance have withstood scrutiny around the country.

But in two of those cases — BJ v. State (of Florida) and O’Hara v. State (of Georgia)* — the court didn’t really rule on the law’s validity, it just decided that the facts of the case fit the charge. Similarly, Watts v. State merely found that a potentially important precedent (Kolender v. Lawson) was inappropriate for the case.

Bell v. State does uphold a Georgia law like 35-11, and so do cases from Florida (State v. Ecker) and Wisconsin (City of Milwaukee v. Nelson). None of these decisions were unanimous; moreover, in the Florida and Wisconsin cases, very strong dissents were lodged on grounds I’ll echo below. More importantly, laws based on the same loitering/”prowling” law were found unconstitutional in Idaho (State v. Bitt), Oregon (Portland v. White), and Washington (Bellevue v. Miller).

The fact that judicial opinions on the matter are about evenly divided – with Southern states finding loitering laws constitutional, and Western states not – is itself instructive. One of the main standards for loitering laws is whether they’re “void for vagueness” – sometimes defined as “so obscure that men of common intelligence must necessarily guess at its meaning.”

And 35-11 is full of language to guess about: “in a manner not usual”, “justifiable and reasonable alarm or immediate concern”, “dispel alarm,” “explain his or her conduct”. In the real world, a dozen officers will interpret these words in a dozen different ways.

My point is that if justices of uncommon intelligence have trouble agreeing whether this law is vague, how much more puzzled the rest of us will be what to expect.

The sponsor’s failure to show a need for this bill in his October 19 memo — which points to declining crime and youth crime rates in the county, and success in Downtown Silver Spring by assigning additional police – only increases my questions about this bill.

The vagueness objection I’ve talked about touches on a concern I’ve shared before — that this law gives too much scope to overzealous or otherwise mistaken police to stop citizens.

Another major objection to this bill is that it smuggles “stop and identify” procedure into our county and state. At least the regrettable 2004 Hiibel ruling by the Rehnquist Court — that a person could be compelled to identify themselves to a policeman — was based on reasonable suspicion of involvement in a crime. But this law compels it for mere concern about future wrongdoing. Even under Henry VIII, Thomas More had the right to “stand on his silence”; it’s strange and sad to give that up 600 years later because of isolated incidents.

An August story in the Post told of 15 young, mostly black men who were stopped and searched in Silver Spring, with some having their tattoos photographed — on nothing but a hunch. They turned out to be doing nothing wrong. It was an unjustified humiliation that just happened to be reported; I think we can expect even more like it with this vague law encouraging stops for highly subjective reasons.

Americans expect our legislators to only craft unambiguous, absolutely necessary laws that don’t infringe on our rights. So I hope you won’t pass this one.

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* I’ve prepared a table of important loitering cases , showing laws like 35-11, cases overturning or upholding those laws, and selected cases overturning/upholding other loitering laws. The table provides links to online copies of the court decisions or statutory language involved, and supplies key quotes from the opinions.